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State v. Presler6/11/1999
is motion to suppress governs the Disposition of the same issue in his present appeal); 18 Moore's Federal Practice § 134.24 at 134-60 ("Once an appeal is taken and an issue is decided, that decision becomes the law of the case for that issue, even if decided on an interlocutory appeal."). Moreover, none of the facts surrounding the taking of the defendant's blood have changed since this Court ruled on the legality of the blood testing in connection with the defendant's first appeal, nor have other circumstances surfaced indicating that a manifest inJustice would result in following the law of this case. See Christianson, 408 U.S. at 817, 108 S. Ct. at 2178, 100 L.Ed.2d at 831; Richardson, 691 A.2d at 546. Thus, I agree with the Court's opinion that the first appeal determined that the taking of the defendant's blood was not performed at the direction of the state police, but rather was taken pursuant to hospital protocol. This became the law of the case after the first appeal, and, absent extraordinary circumstances not present here, the defendant could not relitigate this issue after the remand. Accordingly, I concur in the Court's opinion.
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